Hoyt & Bennett v. Campbell , 1 Cole. Cas. 128 ( 1800 )

With respect to the first question it is to be stated, that heretofore, in all cases where there was not to be a decision by the court, until there had been previously an argument, between the parties, being, except motions to set aside proceedings, the same with our present enumerated motions or cases, the arguments were in writing, and if either party delayed for a term ,to deliver in an argument, the opposite party took a rule against him to qrgiie by the next term or be precluded, and on his default the' court proceeded to examine and decide the cause on the arguments as they stood, or if there had not been any argument delivered in by the party in default, then on the ex parte argument to be thereafter prepared and delivertid in by the party who had taken the rule : as for instance, in case of a writ of error, if, after the parties were at issue in tow, the plaintiff delayed, then the defendant would take a rule against him; if the plaintiff had delivered in his argument, he would take a rule against the defendant to argue in answer ; if the defendant had delivered in his argument, he would, in this last case, take a rule against the plaintiff to argue in reply, and on the default of the respective parties, the court would, in the first case, on the ex parte argument of the defendant, and without any argument on the part of the plaintiff; in the second case, on the argument delivered in by the plaintiff, and without any argument on the part of the defendant; and in the third case, on the argument delivered in by the plaintiff, and the argument in answer delivered in by the defendant, and without any argument in reply by the plaintiff, take up the cause for examination and decision : but the practice of making decisions or adjudications on ex parte arguments or hearings being now wholly done away," and the substitute for it being, that every party is apprised that from his default to appear and argue, or in other words to suggest generally at least the principles of his right, he will be presumed to have renounced it, and so to have consented to what is claimed against him, and that judgment will thereupon pass for the opposite party as of course, the law will therefore, from the necessity of the thing, imply that there must be a means for a party whereby he may still have it in his power to prevent his opponent from delaying, on his part, to bring the cause before the court for their opinion, and the one which the defendant has taken in the present instance, of proceeding by a notice of a motion, ip the nature of a rule to set the cause down for argument, being equally fit and advisable with any other to be adopted or provided as a substitute for the former practice of proceeding by the rule of preclusion, and the plaintiffs (the party entitled in the present case to open or begin,) having delayed for a term to notice the cause for argument, it must be' adjudged regular in the defendant for him then to notice it.

The plaintiffs’ motion, however, as far as it rests on an irregularity in the defendant, consisting in a supposed want of right in him to notice the cause for "argument, may be decided against -them on this, ground, namely, that notwithstanding a notice may be Irregular or defective, or in any other respect improper, yet, if there has been a due service of it, the party on whom it has been served, must appear to oppose the motion, otherwise, as has been already stated, his consent to it, or a renunciation of his right to oppose it, will be presumed from his absence or silence, equally as if the notice had been perfect, and the motion proper in the case; and that it is not to be expected the court will, without the appearance and suggestion of the party, examine farther than to be satisfied there has been a competent service of the notice, comprehending as well the manner, as the time, of service. Indeed, the intent of the 7th rule of Janu* ary term, 1799, was, that there might in future be a clear understanding on the whole of the subject to which this first question relates, . , ■ .

With respect to the second.question, it will suffice to observe that, although there was a sufficient service of the nóticé, yet it did not come to the knowledge of the plaintiff’s attorney until after the defendont had obtained the effect of it; so that there, doubtless, will have been a hardship on the plaintiffs, if the substantial justice or real merits of the case is with them, and if there is a reasonable excuse for their attorney in not having an agent in Albany at the time; but as these matters have not been shown to the court, they cannot interpose ; the plaintiffs, therefore, are to take nothing by their motion, and to pay costs to the defendant in opposing it.